Our Discussion Forum for Week Four (Sep 17—23) concerns and assesses how the New Jersey Supreme Court applied certain fundamental principles characteristic of the modern “legal positivist” jurisprudence of H. L. A. Hart, Professor of Jurisprudence (1952—1969) and Philosophy at University College, Oxford, in their controversial decision in the Matter of Baby M., 109 N.J. 396, 537 A.2d 1227 (N.J. Supreme Ct., 1988).
Your task in the Discussion Forum will be to designate in you contributing post(s) WHICH ONE of four styles of judicial decision making, listed below, you believe would have been the best suited, and therefore should have been applied, in resolving the issues that were resolved, in a decidedly “modern positivistic” fashion, by the New Jersey Supreme Court in its controversial decision in the Matter of Baby M., 109 N.J. 396, 537 A.2d 1227 (N.J. Supreme Ct., 1988):
[1] a “natural law” or “autonomy” based jurisprudence (in the style of Kant’s metaphysics of morals)
[2] a “classical positivist” based jurisprudence (in the style of Austin)
[3] a “pragmatic realist” or “contractarian” based jurisprudence (in the style of Holmes and Kant’s contractarian doctrine of social justice)
[4] a “modern positivist” based jurisprudence (in the style of Hart, and I submit, the New Jersey Supreme Court).
Before you begin preparing your contributing post(s) to this week’s forum, you must have read:
[1]H.L.A. Hart, Positivism and the Separation of Law and Morals (Harvard Law Review, 1958).pdf
and
[2][caselaw] In the Matter of Baby M., 109 N.J. 396, 537 A.2d 1227 (N.J. Supreme Ct., 1988).pdf
H.L.A. Hart, while teaching philosophy of law at Oxford in the early 1950’s, began writing a book later published (in 1961) as “The Concept of Law.” Our reading assignment is his famous lecture presented (in 1958) during his visit to Harvard. Hart had been invited by Harvard Law Professor Lon Fuller to debate their divergent attitudes toward judicial responsibility, in the wake of the breakdown of judicial ethics during the era of tyrannical political authority in force in the fascist regimes that emerged in twentieth century Europe shortly after the First World War.
Where Prof. Fuller believed that all systems of law are founded upon an “internal morality” that citizens are obliged to respect, Prof. Hart had committed himself to the legal positivist belief that the law on the one hand, as the rule of government, and morality, as conventional morality, should have no intercourse, for they are totally distinct conceptions of social order. Hart’s Harvard lecture, included in our reading assignment this week, while acknowledging the legacy and wisdom of the “pragmatic realist” school of jurisprudence owing to Harvard’s own Oliver Wendell Holmes, Jr., nonetheless urged the classical positivist doctrine that judges should remain committed to the separation of law and morals.
Recall that Holmes, in the 1890’s, had been an unrelenting critic of John Austin, a professor of law at the London University in the early 1830’s, Holmes disputing, in particular, Austin’s conception that (1) law is a “command” of higher social authorities to subordinates, as opposed to variously accepted standards of conventional morality; (2) judicial authority consists properly in strict adherence to the express formulation of given statutes, regulations, and rules as announced in judicial precedent, as opposed to the implied “intent” of the drafters of legally binding authority, and (3) judicial responsibility should not be reduced to the business of weighing prevailing trends of public morality so as vainly to attempt some reconstruction of the law “as it should be,” rather than plainly “how it is.”
Hart’s lecture plainly offers some concessions to the position advanced by Holmes, as proposing useful and practically minded advice speaking to the social role the courts actually fill in a democratic society. But Hart was concerned to show that the jurisprudence urged by Holmes was still vulnerable to obscuring the ethical responsibility of judges to be faithful to the law, especially in regard to Holmes’ third recommendation above. Hart therefore defended his commitment to the legal positivist position that judicial responsibility should not be reduced to the business of weighing prevailing trends of public morality so as vainly to attempt some reconstruction of the law “as it should be,” rather than plainly “how it is.”
In this opening post I wish to shed some light, admittedly focused on particular aspects and dimensions, on our primary reading assignments as indicated above, for purposes of preparing us before we embark on our fourth Blackboard® Discussion Forum, which I will release on Wednesday with an opining post. All discussion Forums will remain open (I will not close them) until Midterm Exam week (October 14).
You will have to read the above texts of course before you consider what points to make in your contributing post(s) to the Discussion Forum.
Your task in the Discussion Forum, again, will be to designate in you contributing post(s) WHICH ONE of four styles of judicial decision making, listed below, you believe would have been the best suited, and therefore should have been applied, in resolving the issues that were resolved, in a decidedly “modern positivistic” fashion, by the New Jersey Supreme Court in its controversial decision in the Matter of Baby M., 109 N.J. 396, 537 A.2d 1227 (N.J. Supreme Ct., 1988):
[1] a “natural law” or “autonomy” based jurisprudence (in the style of Kant’s metaphysics of morals)
[2] a “classical positivist” based jurisprudence (in the style of Austin)
[3] a “pragmatic realist” or “contractarian” based jurisprudence (in the style of Holmes and Kant’s contractarian doctrine of social justice)
[4] a “modern positivist” based jurisprudence (in the style of Hart, and I submit, the New Jersey Supreme Court).
I will first adumbrate certain highlights and pivotal points from this week’s reading assignments. Generally, H. L. A. Hart’s arguments favor a revised positivist-based jurisprudence, which may conveniently be viewed as supporting the comparatively mild, or at least less bullish, attitude of judicial restraint manifested, for example, in Judge Paterson’s opinion in Calder v. Bull, 3 U.S. 386 (1798). Be advised that no reference is made to the above case, an important early decision in U.S. Supreme Court jurisprudence concerning the constitutionality of “retrospective lawmaking,” in Hart’s Harvard lecture. Because of the prolixity of Hart’s arguments, and perhaps at the risk of oversimplification, I hazard to offer that case here for purposes of illustrating and comparing fundamental differences between styles of judicial decision making similar to the distinguishments recognized by Hart in his lecture. In Calder v. Bull, the petitioners (the Calders), challenged as ex post facto under the federal constitution and hence unconstitutional, a certain resolution or law of the State of Connecticut that had set aside a decree of a probate court so that a new trial might be granted to the intended inheritors (the Bulls) of a certain estate, who had unfortunately failed to satisfy time limitations for appealing an adverse judgment under the existing probate laws at the time). In that case, Justice Paterson wrote:
“Where is the necessity or use of the latter words if a law impairing the obligation of contracts be comprehended within the terms ‘ex post facto law’? It is obvious from the specification of contracts in the last member of the clause that the framers of the Constitution did not understand or use the words in the sense contended for on the part of the plaintiffs in error [the Calders]. They [the framers] understood and used the words in their known and appropriate signification, as referring to crimes, pains, and penalties, and no further. The arrangement of the distinct members of this section necessarily points to this meaning.
“I had an ardent desire to have extended the provision in the Constitution to retrospective laws in general. There is neither policy, nor safety, in such laws, and therefore I have always had a strong aversion against them. It may in general be truly observed of retrospective laws of every description that they neither accord with sound legislation nor the fundamental principles of the social compact. But on full consideration I am convinced that ex post facto laws must be limited in the manner already expressed; they must be taken in their technical, which is also their common and general, acceptation, and are not to be understood in their literal sense.”
The second paragraph above is important for Justice Paterson’s candid admission that his office as judge obliges him to be faithful to the law, from an ethical notion of professional integrity as well as patriotic responsibility. Paterson would not, for fear of impairing his faithfulness to the law, reference any notion of the “natural rights” of all men not expressly included in the civil laws, nor seek to weigh trends of public morality so as to attempt a reconstruction of the law “as it should be,” rather than plainly “how it is.”
You may note the more strict “classical positivist” stance of Justice William Cushing, who also concurred in the majority opinion in Calder v. Bull, writing separately but simply to assert his conviction that the that law should remain within the provenance of the legitimate and authorized lawmakers, that judicial authority consists properly in strict adherence to the express formulation of given statutes or regulations as opposed to the implied intent of the drafters of legally binding authority, but generally in agreement with Justice Paterson’s concession that judicial responsibility ought not to be in the business either of imposing personal approbation or weighing dubious estimations of emergent public morality in a some vain attempt to reconstruct the law “as it should be,” rather than plainly “how it is.” Justice Cushing wrote:
“The case appears to me to be clear of all difficulty, taken either way. If the act is a judicial act [of the state legislate with state judicial sanction], it is not touched by the federal Constitution, and if it is a legislative act, it is maintained and justified by the ancient and uniform practice of the State of Connecticut.”
The lead opinion in Calder v. Bull was written by Justice Samuel Chase, who asserted, from a stance quite different from those of Paterson and Cushing, that our national tradition recognizes that law must have its roots in a certain “natural law” (as Thomas Hobbes put it) or otherwise in a certain “contractarian” doctrine of justice grounded in certain inalienable natural rights possessed of men party to “the social compact” (as Immanuel Kant would have it). Chase asserted that the principles by which governments protect these rights must therefore be granted priority over derivate “rules prescribed by positive law.” He thus upheld the state of Connecticut’s use of retrospective legislation to protect, and not to subvert, the intent of the testator that the Bulls should inherit the property. Justice Samuel Chase wrote:
“… The purposes for which men enter into society will determine the nature and terms of their social compact.... There are certain vital principles in our free republican governments which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof government was established. An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.... It seems to me, that the right of property, in its origin, could only arise from compact express, or implied, and I think it the better opinion, that the right, as well as the mode, or manner, of acquiring property, and of alienating or transferring, inheriting, or transmitting it, is conferred by society...and is always subject to the rules prescribed by positive law.
[The above Justice Samuel Chase should not be confused with Salmon P. Chase, Chief Judge of the U.S. Supreme Court during the post-Civil War reconstruction period, though the latter did join in Justice Stephen Field’s notable dissenting opinion in the 1873 “Slaughter-House Cases,” which read the due process clause of the fourteenth amendment in its familiar modern construction as not limited to the protection of freed slaves as enforceable as against a state, but as implicating together with such rights other common law individual rights such as the right to pursue a legitimate occupation.]
In the above Calder v. Bull, 3 U.S. 386 (1798), the proponents of a legal positivist jurisprudence did concur in the natural-law or contractarian judgment of Justice Samuel Chase. In more difficult cases, such as that of the Nazi “grudge informer” case discussed by H.L.A. Hart in a famous part of his lecture, concurrence in the result need not presumed. The issue in that case implicated rather a question addressing the judicial ethics of court-martials during the Nazi regime, and the proper means by which, after the defeat of the Axis dictatorships, the courts of appeals ought to dispose of certain manifestly unethical decisions of such court-martial tribunals.
Here I will draw your attention to the following famous passage from the end of Section Four of Professor Hart’s 1958 lecture at Harvard Law School “Positivism and the Separation of Law and Morals,” beginning on page 618 of my handout, which I ask that you examine carefully:
“However, we are not left to a mere academic discussion in order to evaluate the plea which Radbruch made for the revision of the distinction between law and morals. After the war Radbruch's conception of law as containing in itself the essential moral principle of humanitarianism was applied in practice by German courts in certain cases in which local war criminals, spies, and informers under the Nazi regime were punished. The special importance of these cases is that the persons accused of these crimes claimed that what they had done was not illegal under the laws of the regime in force at the time these actions were performed. This plea was met with the reply that the laws upon which they relied were invalid as contravening the fundamental principles of morality. Let me cite briefly one of these cases.
“In 1944 a woman, wishing to be rid of her husband, denounced him to the authorities for insulting remarks he had made about Hitler while home on leave from the German army. The wife was under no legal duty to report his acts, though what he had said was apparently in violation of statutes making it illegal to make statements detrimental to the government of the Third Reich or to impair by any means the military defense of the German people. The husband was arrested and sentenced to death, apparently pursuant to these statutes, though he was not executed but was sent to the front. In 1949 the wife was prosecuted in a West German court for an offense which we would describe as illegally depriving a person of his freedom (rechtswidrige Freiheitsberaubung). This was punishable as a crime under the German Criminal Code of 1871 which had remained in force continuously since its enactment. The wife pleaded that her husband's imprisonment was pursuant to the Nazi statutes and hence that she had committed no crime. The court of appeal to which the case ultimately came held that the wife was guilty of procuring the deprivation of her husband's liberty by denouncing him to the German courts, even though he had been sentenced by a court for having violated a statute, since, to quote the words of the court, the statute "was contrary to the sound conscience and sense of justice of all decent human beings." This reasoning was followed in many cases which have been hailed as a triumph of the doctrines of natural law and as signaling the overthrow of positivism. The unqualified satisfaction with this result seems to me to be hysteria. Many of us might applaud the objective—that of punishing a woman for an outrageously immoral act—but this was secured only by declaring a statute established since 1934 not to have the force of law, and at least the wisdom of this course must be doubted. There were, of course, two other choices. One was to let the woman go unpunished; one can sympathize with and endorse the view that this might have been a bad thing to do. The other was to face the fact that if the woman were to be punished it must be pursuant to the introduction of a frankly retrospective law and with a full consciousness of what was sacrificed in securing her punishment in this way. Odious as retrospective criminal legislation and punishment may be, to have pursued it openly in this case would at least have had the merits of candour. It would have made plain that in punishing the woman a choice had to be made between two evils, that of leaving her unpunished and that of sacrificing a very precious principle of morality endorsed by most legal systems. Surely if we have learned anything from the history of morals it is that the thing to do with a moral quandary is not to hide it. Like nettles, the occasions when life forces us to choose between the lesser of two evils must be grasped with the consciousness that they are what they are. The vice of this use of the principle that, at certain limiting points, what is utterly immoral cannot be law or lawful is that it will serve to cloak the true nature of the problems with which we are faced and will encourage the romantic optimism that all the values we cherish ultimately will fit into a single system, that no one of them has to be sacrificed or compromised to accommodate another. …”
Hart concludes, perhaps quite daunted by the whole problem, with remarks I think suggesting a rather parochial utilitarian wisdom: “… It may seem perhaps to make too much of forms, even perhaps of words, to emphasize one way of disposing of this difficult case as compared with another which might have led, so far as the woman was concerned, to exactly the same result. Why should we dramatize the difference between them? We might punish the woman under a new retrospective law and declare overtly that we were doing something inconsistent with our principles as the lesser of two evils; or we might allow the case to pass as one in which we do not point out precisely where we sacrifice such a principle. But candour is not just one among many minor virtues of the administration of law, just as it is not merely a minor virtue of morality. For if we adopt Radbruch's view, and with him and the German courts make our protest against evil law in the form of an assertion that certain rules cannot be law because of their moral iniquity, we confuse one of the most powerful, because it is the simplest, forms of moral criticism. If with the Utilitarians we speak plainly, we say that laws may be law but too evil to be obeyed. This is a moral condemnation which everyone can understand and it makes an immediate and obvious claim to moral attention.”
I will now adumbrate in summary fashion your second reading assignment, namely, the New Jersey Supreme Court’s decision in the Matter of Baby M., 109 N.J. 396, 537 A.2d 1227 (N.J. Supreme Ct., 1988), which I submit for your consideration as an example of how a court today might apply the modern “legal positivist” jurisprudence favored by H. L. A. Hart. In considering how the New Jersey Supreme Court decides this matter, pay attention to how the Court manages to punish the petitioner, a woman that entered into a commercial surrogacy agreement with the respondent at a time when, in the estimation of the New Jersey Supreme Court, such agreements should properly have been deemed unenforceable and void as contrary to the public policy of the State of New Jersey, indeed, as immoral.
You might compare, under these lights, how the New Jersey Supreme Court’s decision in the Baby M matter bears an analogical comparison to how, in the 1949 case discussed by H.L.A. Hart in the above passage from his Harvard lecture, the West German court managed to punish the defendant, a woman prosecuted for reporting her husband, a German soldier, to the Nazi authorities, an act which, in the estimation of the high German court in 1949, should properly have been deemed in violation of her husband’s freedom (rechtswidrige Freiheitsberaubung). The West German Court was obliged to acknowledge that, in retrospect, the Nazi law was contrary to the morals of the German people, though at the time it was the positive law of the land.
What I wish you to consider is that many if not most commercial surrogacy agreements are no longer considered unenforceable and void as contrary to the public policy, either in the state of New Jersey, or other states such as New York. In retrospect, such commercial surrogacy agreements are no longer considered immoral, except perhaps in the case of the petitioner in that matter, namely Mrs. Mary Beth Whitehead. Consult in this regard the following information @
https://www.nj.com/healthfit/2018/05/bill_expanding_surrogate_parenting_now_law_in_nj.html
In the Matter of Baby M., 109 N.J. 396, 537 A.2d 1227 (1988), the New Jersey Supreme Court resolved a custody dispute over whether a questionable contract for services arranged by an assisted reproduction clinic (the ICNY) between an artificial insemination donor (Mr. Stern) whose wife was infertile, and a “surrogate” fertile woman (Mrs. Whitehead, a married mother of two children), was enforceable as against the surrogate mother when she refused to relinquish custody of the baby after it was born so that it could be adopted by the Sterns. Under the ICNY’s “Surrogate Parenting Agreement,” the surrogate mother would receive a fee for undergoing the artificial insemination by the clinic and for carrying the fetus to healthy childbirth, waive her right to elect an abortion in the event of a change of position, and agree that no compensation would be paid if the child was miscarried prior to the fifth month of pregnancy or, if the child were miscarried after that time, they would receive only $1,000 of the agreed amount.
The Court, rejecting the trial court’s finding that the terms of the contract had been freely entered into and binding upon the parties, invalidated any right of the Stern family to legally adopt the baby. Nonetheless, in restoring the surrogate mother’s parental rights, the New Jersey Supreme Court deemed it “in the best interests of the child” not to reverse the trial court’s grant of custody to the Sterns, with whom the baby had now been living for several years, but rather to order the trial court to modify its custodial award to accommodate visitation rights by the legal parents.
The high Court’s reasoning included findings that the “agreement” precluded therapeutic counseling for the biological mother mandated by law to assist her in exercising her natural right to choose whether to give up her child for adoption, illegally purported to be irrevocable, and illegally purported to offer compensation for adoption. In Section II.A of the opinion, the Court ruled: “The surrogacy contract conflicts with: (1) laws prohibiting the use of money in connection with adoptions; (2) laws requiring proof of parental unfitness or abandonment before termination of parental rights is ordered or an adoption is granted; and (3) laws that make surrender of custody and consent to adoption revocable in private placement adoptions.” In effect the New Jersey Supreme Court found, in the Matter of Baby M. matter, that the court of original jurisdiction, a state family court deciding a custody dispute, manifestly acted in disregard of positive statutory law in enforcing a purported contract for paid surrogacy and, though properly awarding custody to the biological father’s family “in the child’s best interests,” in accordance with the utilitarian ethics, the family court should also have awarded visitation rights to the surrogate mother, who was the legal parent.
For didactic purposes here merely, though as moderator of this forum I normally would avoid doing so, I can state that the New Jersey Supreme Court might have found instead—perhaps if it adhered to a different jurisprudence, such as that of “pragmatic realism”—though indeed it found otherwise, that the family court could reasonably have found that the surrogate mother was neither duped by the language of the ICNY’s “Surrogate Parenting Agreement” nor prevented from receiving authorized counseling or mental health triage services, that she was compensated for undertaking medical treatment rather than for a decision as to whether to give her child up for adoption, that that the biological father rather than the biological mother should be deemed the legal parent in this case and so entitled to custody, without reaching the issue of what decision might be “in the child’s best interests.”
Thus, I submit, a different court might have upheld the family court’s recognition of the ICNY’s “Surrogate Parenting Agreement” as a valid and enforceable contract under an emergent public policy favoring such agreements, though admittedly “in retrospect,” since naturally this would be a case of first impression, and the new rule of law so announced would require neither the sanction of prior legislative enactment nor the confirmation of judicial precedent. Nonetheless, such a court would have arrived at the same results as New Jersey Supreme Court, finding that the biological father rather than the biological mother should be deemed the legal parent in this case and so entitled to custody, though of course the biological mother should be awarded visitation rights. Students in this Discussion Forum should understand that that is a different opinion, not the opinion of the New Jersey courts.
Again, your task in the Discussion Forum is to designate in you contributing post(s) WHICH ONE of four styles of judicial decision making, listed below, you believe would have been the best suited, and therefore should have been applied, in resolving the issues that were resolved, in a decidedly “modern positivistic” fashion, by the New Jersey Supreme Court in its controversial decision in the Matter of Baby M., 109 N.J. 396, 537 A.2d 1227 (N.J. Supreme Ct., 1988):
[1] a “natural law” or “autonomy” based jurisprudence (in the style of Kant’s metaphysics of morals)
[2] a “classical positivist” based jurisprudence (in the style of Austin)
[3] a “pragmatic realist” or “contractarian” based jurisprudence (in the style of Holmes and Kant’s contractarian doctrine of social justice)
[4] a “modern positivist” based jurisprudence (in the style of Hart, and I submit, the New Jersey Supreme Court).
State the grounds (the evidence and reasons) for holding your position CLEARLY AND CAREFULLY. Keep in mind that this is of course your weekly assignment for class, not simply an internet message board. Address the particular issue for discussion which I have raised in this opening post. You must submit your contributing post(s) in the form of a reply to THIS post, my opening post in THIS thread, the thread of this week’s Discussion Forum for Week Four (